Product Regulation and Metrology Bill [HL]

Debate between Lord Fox and Earl of Lytton

Committee stage
Wednesday 27th November 2024 Grand Committee

[The Earl of Lytton (CB)]

My Lords, members of the Committee will be aware that there are concerns relating to the suitability and safety of construction products, especially in the light of the Grenfell phase 2 report, and will know my professional interest in this area.

First, I pay tribute to the clerks in the Public Bill Office for their help in drafting this amendment, although its objectives and the rationale behind it are entirely my responsibility. I consider that the amendment speaks for itself in probing the Government’s intentions and resolve in bringing construction products specifically within the Bill’s scope, although they are not excluded, either by the Long Title or by the matters listed in the Schedule. My underlying purpose is to clarify this Bill’s specific focus in the objective regulation of a construction-related product’s inherent characteristics rather the nature of its use, particularly in combination with other products. To put it another way, it is concerned with the regulation, testing, certification and marketing of products for their specific stated use and application—namely, the aims of the Bill.

The British Board of Agrément—the BBA—is one of the main industry certifying bodies for construction products. In virtually all the BBA certificates I have looked at, it is made clear that the approval is for the specific use and application as presented. This is logical because behind every approval is an assessment or test of some kind that will be specific as to the proposed use. However, we know from the Grenfell phase 2 report how things can be misrepresented. Of course, none of this prevents misuse of some sort, or abuse, but it starts to clarify responsibility as applying to those who have true agency in the specification and use of products, especially where fire safety is concerned. I hope this gives the Minister an opportunity to confirm that, so far, I have got this right.

At the meeting with the noble Lord, Lord Leong, and officials, for which I thank him, it was suggested that while the provisions of the Bill cover construction products, in all probability any regulations would be made under a different legislative provision, such as the Building Safety Act 2022—so I looked in that Act for the word “regulation”. I got 650 hits, which sounds a bit like Henry VIII on steroids, I am bound to observe. I alighted on paragraph 10(1) of Schedule 11 to that Act which states:

“For the purposes of this Schedule, “safety-critical products” means construction products which are included in a list contained in construction products regulations”.


It is getting a bit circular, I suspect. Sub-paragraph (2) states:

“A construction product may only be included in a list under sub-paragraph (1) if … in the view of the Secretary of State any failure of the product would risk causing death or serious injury to any person”.


I would be grateful if the Minister could confirm that I am right in believing that this is the relevant regulation-making measure that might be used in the Building Safety Act to implement some of the provisions of this Bill, if they are not implemented directly. If so, it has to be noted that the Building Safety Act relates to critical life-safety risks to persons, first and foremost. The Bill does not use that metric, so I consider that the relationship between this Bill and the BSA, for example, needs further clarification.

It has long been my professional assessment that if a building is robust, occupant safety is likely to be assured as well, but focusing on critical fire risk which interests itself only with occupants’ risks consigning them to significant risks of an emotional and financial nature if the building lacks durability and is effectively considered expendable. In terms of human life, that is absolutely the right approach, and I get that, but in terms of mercantile practice and peace of mind, it is a philosophy with gaps, especially if the general Building Safety Act approach is one of proportionality or tolerable risk—although I question by whose objective standards those might be measured, but that is another question.

So if I am correct, even allowing for the point that a building is not “product” as a term of art, why regulate such an important matter as construction products to be used in a residential block via different standards as compared with, say, those for a fridge-freezer or a washing machine? As set out in Clause 1(4)(c), we are concerned with a product that could “reasonably be foreseen” to cause damage to property. How is that, in the case of buildings under the BSA, a proportionate or tolerable risk to life? In the Government’s view, does the latter include the former? If so, I would be delighted to get confirmation of that; it is something that I tried to get hold of right the way through the then Building Safety Bill’s time before us. If not, how does the BSA afford the implementation of product safety in construction products?

Note if you will that the assemblage of products and processes used as someone’s home represents their place of safety. It is often their largest investment; it is also often incomparably more valuable an entity than most consumer products, both to them and in market terms. So standards and regulation matter very much. I invite the Minister to enlighten the Committee on this apparent legislative inconsistency.

Had this amendment been debated earlier in the evening, I might have been tempted at this point to have a little rant about British Standards being set behind a paywall—as well as the invidious nature of that when they are also embedded in regulation; the regulation is open source but the BS is not—but I will leave that matter in part to one side for the moment. I appreciate that some of the points I have mentioned go beyond what I discussed in the meeting with the Minister so, if he is unable to answer them right now, perhaps he could write to me before the next stage of the Bill. I beg to move.

[Lord Fox (LD)]

I will briefly respond to the noble Earl. He is right to raise this issue, which is clearly important; we look forward to seeing how the Government respond to it. There are serious issues that need to be addressed somewhere. As has been observed by the noble Lord, Lord Sharpe, and others, the open nature of this Bill offers an opportunity for things like this to be properly discussed and to be, if not solved in this way, perhaps solved in another way.